So your private information is being sought, what are you going to do to protect it? That depends on the manner in which information is being requested by the opposing party. Private information will either be (1) requested directly from you through the use of interrogatories (a fancy word for “questions”) or document demands—both of which are forms of written discovery—or (2) requested from a third-party (such as a bank or medical provider) using a subpoena.
1. Information Requests sent directly to you.
A. State your Objections. If you receive written discovery, such as interrogatories or document demands directly from the opposing party, you must state your objection based on the Right to Privacy within the deadline provided—that’s usually 30 days after being served with the discovery. If you fail to state your objection, you waive it! Let me say that again: if you fail to state your objection to producing private information based on your Right to Privacy, then you are waiving that right. Therefore, you must ensure that your objection is timely made in writing by responding to the discovery requests with the stated objection.
A Right to Privacy objection goes something like this “The information sought violates the responding party’s Constitutional Right to Privacy and no further information will be provided on that basis.” You can say it however you like, just be sure it clearly is expressing your Right to Privacy objection.
After you object, the opposing party has the right to bring a Motion to Compel, asking the Court to force you to answer the questions or produce the documents regardless of your Right to Privacy. You then must respond to the Motion and explain to the Court why your rights should be respected in your case. The Court then uses the balancing test (discussed in Part One of this series) and decides who is right and who is wrong.
B. Move for Protective Order. As an alternative to serving objections and waiting for a Motion to Compel, you can be proactive and bring a Motion for Protective Order asking the Court to rule that your Right to Privacy should prevail over whatever information is requested. Typically, a party does not bring a Motion for Protective Order because it’s much easier to simply object and then see if the opposing party wishes to force the issue by filing a Motion to Compel.
If, however, you want to be the first one to bring the issue to the Court’s attention, you can file your Motion seeking a protective order—which would protect your private information from being disclosed.
2. Information Requests made to a Third-Party (such as a bank or medical provider)
At times, an opposing party will seek your private information from third-parties by serving subpoenas on entities that record your private information, like banks and medical providers. When a third-party is subpoenaed for your private information you, as a party to the lawsuit, are required to file a Motion to Quash the subpoena. You do not have the luxury of simply serving written objections as you would with written discovery sent directly to you. You must take action in Court by way of a Motion. If you fail to file the Motion, then the information can be produced even though it is otherwise private information.
As soon as you file your Motion to Quash, there is an automatic stay of the subpoena until the Court hears and rules on the underlying Motion. So once your Motion is filed, you’ll want to serve a copy of it on the third-party entity so that they know the subpoena should be put on hold until the Court rules.
By the way, if you are NOT a party to a lawsuit, but you receive notice that someone is going to subpoena your bank, medical, or other private records, you can object to that by simply serving your written objections using the form that is required to be given to you along with the notice of the subpoena. Non-parties can protect their rights by simply objecting—they do NOT need to file a Motion in Court. Once written objections are made by a non-party, the party seeking the information would have to bring a Motion to Compel in Court in order to overcome the objection.
The bottom line: you must take action to protect your Right to Privacy. When the time comes to protect your rights, make sure you act promptly!